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milk taken from that cow, and then having it analysed, thus bearing out that the milk he had sold was the same in quality?
Mr. Francis-Very well; I should think the immediate answer of my learned friend would be that that would go for nothing, as the question is Did you adulterate the milk you sold the other day ?" That evidence would be of no value.
The Acting Chief Justice --Why not? Sup. posing sample No. 2 was drawn from the cow and was therefore clearly not adulterated. If the analyst found a large quantity of water in it he would say
I seo clearly that your cows produce more water than usual."
Mr. Francis-That is putting it from the other point of view.
THE HONGKONG WEEKLY PRESS AND
The Acting Chief Justice-If, on the other hand, he found that milk drawn straight from the cow produced only, say, 83 per cent. of water, and the first sample he got produced 89 per cent., and if he found that the fatty and non-fatty solids were much more in the sample he had seen drawn from the cow. he would say there was additional force in his statement that the first milk was adulterated.
Mr. Francis-We cannot compel him to do that.
The Acting Chief Justice-If you wanted it for the defence he would have done it.
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Mr. Francis asked if it was fair to deal with a man in that way and in a case the nature of which they were practically unacquainted with, and proceeded to quote another case, Hewett r Taylor, reported in the Weekly Notes," February 15th, 1896. In this case defendant had shown that he had himself superintended the milking of two cows and the Court had held that his evidence was worthy of credit. In the present case Mr. Kennedy's witnesses had given an account of the process of milking and the consigament of the milk to the re- pository. They had said that no water could get into the milk and, as in the case quoted, their evidence was worthy of credit.
The Acting Chief Justice-I read the evidence very carefully yesterday afternoon and it says there were six COWS at the Mica Works. David Kennedy milked them and took the milk to Causeway Bay. Then George Bayford, foreman at Cause way Bay, saw sixty-seven cows milked, and that milk was put by him into three large cans and he says that those three cnas and one con- taining the Mica Works milk were sent in a van to the Garden Road repository. Now, when you come to another part of David Kennedy's evidence he says four cans weut from Cause- way Bay in addition to the one from the Mica Works. So somehow one of the cans slipped in at Causeway Bay, as Bayford says there were four cans and Kennedy says there were five. Is it not quite possible that that extra can contained buffalo milk which is used for making butter, or something else? That may account for the whole thing.
Mr. Francis-I do not think there is any possibility of a can of buffalo milk accounting for six per cent, of added water.
that a jury would attach any importance to the fact that there was a difference of opinion as to whether there were four or five cans when there was the positive statement of all parties that no milk was put into the water-I mean no water was put into the milk? (Laughter.)
The Acting Chief Justice-The contents of that extra can cannot be spoken to by anybody. It might have contained half milk and half water. After a case Magistrate must come to a conclusion to the is fairly tried the
best of his ability. He comes to that conclusion and there is an appeal. Unless it is most likely that he was wrong the Court cannot grant a re-hearing in order to give the defen- dant time to get a lot more evidence. Such a course would he EL temptation to commit perjury.
May 7, 1896.
ter there was, and in the English case the analyst omitted to do that.
The Acting Puisne Judge Suppose Mr. Crow went to Honolulu and analysed the milk of cows there for the first time. Would you be prepared to accept his analysis as a correct one?
his analysis as to the quantity of the different Mr. Francis--I would be prepared to accept materials, but if he went further and said there was six per cent, of added water in it I should
"Do say you know what these cows are fed on? Have you analysed the milk of sufficient cows? because you are talking nonsense."
The Acting Chief Justice Is not that a pro- per thing for cross-examination P
Mr. Francis-No.
The Acting Chief Justice Do you mean to say, Mr. Francis, you would not have asked these questions yourself?
Mr. Francis-We-would not offer any evid- ence on that point: the question as to what is the standard of quality is the most important.
The Acting Chief Justice-Mr. Crow, who has analysed milk in England, is an expert specially employed for a certain purpose, and it is not to be supposed that au expert like Mr. Crow does not know the standard, und the question is whether his certificate is not prima facie evidence. It is absolutely con- clusive. If the milk had been taken from a small number of cows and you gould have proved that it was an absolute impossibility for water to have got into it, the Magistrate might have come to the conclusion that there was no water in it. But we have the very strong evidence of the analyst, and we have evidence that an extra can that was not intended to be sold to the public was put by somebody into that cart and was received at Garden Road where the milk was all mixed before it was sold. In that way it is possible that extra water may have got in, and Mr. Kennedy is liable upon that.
Mr. Francis said he asked for their Lord-known in professional etiquette. ship's decision on this point: Did the scientific evidence given by the analyst comply with the common law as laid down in the case he had quoted that the Magistrate should be in pos- session of such facts as would enable him to form his own opinion and his own judgment as to whether the analyst's opinion was correct or not? If the Magistrate thought himself bound to accept the analyst's opinion because of his very great experience and his official experience then the decision of the Court was the decision of the analyst aud not of the Magistrate. The cominon law required that the Magistrate should have such facts before him as would enable him to form his own opinion on the evidence before him, and he was at liberty to dissent from the analyst's opinion if he chose. Now there was no eridence put before the Magistrate as to what was the standard quality of milk and the prosecution did not ask the question. The decision was given simply on Mr. Crow's opinion. The Acting Chief Justice-He has been
Mr. Francis-Certainly not. If the prosecu tion thinks proper to omit evidence I should certainly not think of asking that question. If Mr. Crow had given one standard I should have cross-examined him with a view to showing that there was another standard or variations of the standard. If he omitted the fact I should be guilty of a breach of professional conduct if I brought out the question.
The Acting Chief Justice-That shows you would be afraid of the answer
Mr. Francis-No. It is a well known rule of law that I should be committing a breach of professional etiquette if I asked questions the answers to which would tend to support the case for the prosecution.
The Acting Chief Justice I should prefer to get out the whole truth.
Mr. Francis-It is for the Court to bring out the whole truth; it is not the duty of counsel for the defence to do so. That is well
cross-examined.
Mr. Francis-There was no evidence given before the Magistrate of the standard quality
of milk.
The Acting Chief Justice-He could have been cross-examined on the point.
Mr. Fraucis-Cross-examination is not in- tended for the purpose of aiding the prosecution, The evidence was that outside water had been added to that milk. Mr. Crow said there was in his opinion six per cent, but he gave no evidence as to what was the normal quantity of water in milk, and if he had given the standard recognised in England he would have said 87 to 88 per cent., and broadly I say he knows nothing about local milk.
The Acting Chief Justice-Ido not know that it is important, but it is a singular thing. Kennedy says "I drove in with the cans to Causeway Bay. I put in the cart myself and sent to the Garden Road repository four cans, and another can from the Mica Works was sent out in the same cart." That makes five cans that went from Causeway Bay to Garden Road. Now turn to the evidence of George Bayford. "The milk was put into three large tins; there was another tin in the cart." So you have a can that came to Garden Road which is not accounted for. Isn't it preposterous to sup- pose that count can be kept of all these cows? It cannot be said to have been proved conclu- sively that the whole of the milk was never lost sight of when there are 167 cows. can is the most damaging part of the evidence. Mr. Francis-There is a discrepancy in the number of cans, but at the same time there is positive evidence of persons who may be mistaken as to the number of cans that the cows were properly milked and that there was no water in the cans. That is a trifling discrepiness of the prosecution to put that standard in
ancy.
That extra
The Acting Chief Justice-It is a very weak point in your own evidence and differentiates the case from the English case you quoted.
Mr. Francis-Does your Lordship believe
The Acting Chief Justice-There is DO evidence that he has never analysed any other milk. I believe he has. I cannot take, it for granted that he has not unless he says so.
Mr. Francis read Mr. Crow's evidence and pointed out that the witness could not attempt to set up a standard with one analysis.
The Acting Chief Justice-Why do you as sume he is not acquainted with the standard of milk? It is part of his business.
Mr. Francis-Yes, and it is part of the bus
court so that the Court may judge itself, and as Mr. Justice Kennedy has said, the court may adopt some other standard.
The Acting Chief Justice-Mr. Crow stated how much fatty and how much non-fatty mat-
Proceeding with his argument Mr. Francis pointed out that Mr. Crow.said he could not quote figures as to Australian cows, which showed that Mr. Crow had no knowledge or practical experience of Australian cows.
The Acting Chief Justice-The man would be almost superhuman if he could get into the witness box and quote figures as to every cow under the sun.
figures, how can he possibly say there was.six Mr. Francis-If Mr. Crow cannot quote
per cent. of added water ?
that this particular cow was an Australian cow; The Acting Chief Justice-It does not follow
all the milk was mixed up.
Mr. Francis, in conclusion, said Mr. Crow was an able expert, but the law is that a Magistrate must decide on the case before him and not on Mr. Crow's opinion.
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The Acting Chief Justice I do not think I need call upon you, Mr. Pollock. I think I will, give judgment in this case at once. It seems that the appellant, Mr. Kennedy, was convicted before the Magistrate, after a careful hearing on the 1st and 2nd of April, on a charge of having sold adulterated food for man. Now by the 5th section of Ordinance 23 of 1890 the words "food for man are defined to include every article of food or drink for man other than drugs or water. The question is whether Mr. Kennedy was rightly convicted of having sold milk which was adulterated by having water added to it. The evidence on which the Magistrate seems to have relied in con- victing appears chiefly to have been that of Mr. Crow, the Government Analyst. He stated in the box, and put in his certificate as part of his evidence which was given upon oath, that in his opinion at least 6 per cent. of water had been added to the milk, and in that certificate he stated what the percentage of non-fatty solids was, what the percentage of fat was, and what the percentage of water was. He also stated the specific gravity by the hydrometer, with the result that he came to the conclusion that at least 6 per cent. of water had been added. Now, it may be said that ought not to be taken as absolutely conclusive evidence, and I quite agree. It is quite open to the defendant to produce evidence on the other side. A case occurred in England where a certificate was. put in stating that water had been added, and the answer of the defendant was The milk came from two cows only. I superintended the whole operations I swear no water was added;
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